Retention of Property by Personal Representative; Corporate Fiduciaries

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Investments, Sales, and Conveyances
  5. Investments
  6. Retention of Property by Personal Representative; Corporate Fiduciaries

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  1. Unless otherwise provided in the will, a personal representative is authorized to retain the property received by the personal representative on the creation of the estate, including, in the case of a corporate fiduciary, stock or other securities of its own issue, even though the property may not otherwise be a legal investment and a personal representative shall not be liable for such retention, except for gross neglect. In the case of corporate securities, a personal representative may likewise retain the securities into which the securities originally received are converted or which are derived therefrom as a result of merger, consolidation, stock dividends, splits, liquidations, and similar procedures; and a personal representative may exercise by purchase or otherwise any rights, warrants, or conversion features attaching to any such securities. This Code section applies to all property held by a personal representative on March 28, 1961, under estates previously created, except that it shall not relieve a personal representative from liability for loss which had already accrued on or before March 28, 1961.
  2. In the case of a corporate fiduciary, the authority granted in subsection (a) of this Code section shall apply to the exchange or conversion of stock or securities of the corporate fiduciary's own issue, whether or not any new stock or securities received in exchange therefor are substantially equivalent to those originally held; and such authority shall also apply to the continued retention of all new stock and securities resulting from merger, consolidation, stock dividends, splits, liquidations, and similar procedures and received by virtue of such conversion or exchange of stock or securities of the corporate fiduciary's own issue, whether or not the stock or securities are substantially equivalent to those originally received by the fiduciary. The authority granted in subsection (a) of this Code section shall have reference, inter alia, to the exchange and continued retention of such stock or securities for stock or securities of any holding company which owns stock or other interests in one or more other corporations including the corporate fiduciary, whether the holding company is newly formed or already existing and whether or not any of the corporations owns assets identical or similar to the assets of or carries on businesses identical or similar to the corporation the stock or securities of which were previously received by the fiduciary; and any such authority shall apply regardless of whether any of the corporations has officers, directors, employees, agents, or trustees in common with the corporation the stock or securities of which were previously received by the fiduciary.

(Code 1981, §53-8-5, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For note discussing and comparing the prudent man rule and the legal list rule in trustee investment, see 15 Mercer L. Rev. 530 (1964).

COMMENT

This section carries forward the provisions of former OCGA Sec. 53-8-6(d) and (e). The former Code section applied to trustees and guardians as well as executors and administrators. Similar provisions now appear in Article 13 of Chapter 12 of this Title (the Georgia Trust Act) and Chapter 2 of Title 29 (Guardian and Ward).

JUDICIAL DECISIONS

Estate administrator had right to inspect.

- Order granting an estate administrator of a deceased shareholder the right to inspect the defendant's corporate books and denying the defendant's motions to compel and stay pending arbitration was affirmed because the statutes governing the transfer of stock to the estate vested ownership of the shares in the administrator of the estate and the probate court's order granted the adminstrator trustee's powers over those shares. Regal Nissan, Inc. v. Scott, 348 Ga. App. 91, 821 S.E.2d 561 (2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 510, 517, 525, 527, 531, 533.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 274 et seq., 357.

ALR.

- Liability of executor, administrator, or trustee and his sureties for depreciation in value of corporate stock or other corporation securities held by estate or trust, because of his conduct, for which he is directly responsible to the corporation, 62 A.L.R. 563.

Liability for interest or profits on funds of estate deposited in bank or trust company which is itself executor, administrator, trustee, or guardian, or in which executor, etc., is interested, 88 A.L.R. 205.

Effect of beneficiary's consent to, acquiescence in, or ratification of, improper investments or loans (including failure to invest) by trustee or other fiduciary, 128 A.L.R. 4.

Construction and effect of instrument authorizing or directing trustee or executor to retain investments received under such instrument. 47 A.L.R.2d 187.

ARTICLE 2 SALES AND CONVEYANCES

COMMENT

The provisions of this Article replace former Article 2 of Chapter 8 of Title 53. The new provisions generally authorize sales and other transactions with the property of the estate provided that the requirements outlined in the subsequent Code sections are met. These provisions apply only in those estates where the personal representative has not been granted broad powers to sell and otherwise deal with the estate property. Such powers may appear expressly in the will, may be made part of the will by the incorporation by reference of the powers contained in OCGA Sec. 53-12-232, or may be granted to the personal representative pursuant to Code Section 53-7-1(b). For other provisions relating to the power of Temporary Administrators, see Code Section 53-7-4 and Article 4 of Chapter 6 of this Title.


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